How does the mandatory minimum sentence of five years for kidnapping a person under age 16 compare to other mandatory minimum sentences in the Criminal Code, especially some sexual offences against children?

What other offences have a mandatory minimum sentence of five years?

In your opinion, do the lengths of these mandatory minimum sentences reflect the seriousness of each of these offences?

Certainly for the conviction of kidnapping of a young child under the age of 16, the five-year minimum is something that recognizes the severity of the crime.

With regard to sexual offences, whether it be sexual assault, sexual exploitation, pornographic material, etc., those minimum mandatories were deemed by other parliaments that were before me. I can't speak to them; I won't speak to them. From a police officer's perspective, sometimes I strongly suggest that we don't go far enough because I've seen things that most people in this room have not seen. I can tell you that there are certain offences that would sicken your stomach. Because we have the latitude in this country to recognize that the offenders are treatable, and in some cases they may be, but in some cases they aren't, and when they're not we need to send the message.

The main amendment is to introduce a five-year minimum sentence for a person under 16 years of age.

That being said, if I recall correctly, and I will try to find the quote because I wouldn't want to put words in the judge's mouth, although, as a lawyer, I've done that all my life—quoting the Supreme Court as if I understood what you said.

In an interview on CBC Radio's The Current, in December 2010, when asked about mandatory minimum sentences—and I hope I'm quoting you perfectly—you said no, you were not in favour. “No two crimes are the same...and you can't put the square peg in a round hole”. Minimum sentences are “an attempt to get one sentence that fits all crimes”. The goal to “rehabilitate...[and] protect society, it's not easy”. It is important to “treat the individual” case, and that section 718 of the Criminal Code sets out the reasons for sentencing and there are seven conditions.

Sometime I feel, through the committee, we've been hearing one new projet de loi after new projet de loi, and it's always the introduction of new minimum sentences. I feel we're doing it piecemeal.

I would like to get you to maybe reflect on that quote that you made at that time and how it would apply to this case, and actually, on the rebound, force you to give us some type of statement.

The difficulty with minimum sentencing is that it could conflict with the Charter of Rights as being cruel and unusual punishment. It will only be saved if it qualifies under section 1 of the charter. That being said, this would explain why you have minimum sentences for murder that are constitutional—because section 1 saves them.

You might recall that several years ago the Supreme Court reviewed a case of smuggling narcotics into Canada, at which time there was a seven-year minimum sentence. That minimum sentence was struck down on the basis that it was unconstitutional. So, leaving aside the merits of a minimum sentence, you have the hurdle of whether or not the Charter of Rights is offended by virtue of it being cruel and unusual.

You can envisage a 16-year-old, in the particular statute that we're talking about, varying in comprehension, varying in a number of ways for which it would be desirable for the court to have some discretion.

I don't know that I can say much more on the problems with minimum sentencing, the hurdle that has to be overcome.

The other aspect that troubles me sometimes with some of those private member's bills, when we're touching a piece of legislation such as the Criminal Code, is that we tend to pinpoint one aspect of the code, but there are sometimes other sections that seem to cover the situation. I'm also wondering whether we are not lacking in.... How can I say this?

I am wondering if we could not adopt a more comprehensive approach to the situation. I am thinking in particular of section 279, which they want to amend.

If you look at section 281, which seems to cover part of it, isn't there a risk of contradiction, if we start doing these piecemeal types of amendment to the Criminal Code, piece by piece?

I agree with you, and the Criminal Code has suffered because of this. The Criminal Code is not unlike our Income Tax Act. When, for lack of a better word, a loophole is discovered in the Income Tax Act, it's patched by an amendment. We have an Income Tax Act that I defy any genius to read and by doing so understand the tax system in Canada. It's impossible. You have to go section by section, and it's laborious.

We're falling into the same trap, in my view, with the Criminal Code—applying ad hoc amendments to cover one section the effect of which may be felt in other sections. So I agree with what you're saying on that. It's a big job, of course, to revise the Criminal Code. It has been some time since it has been done, but I think the time is getting close. For instance, the section you're talking about, section 279, has a number of subsections that go on and on. It just lends itself to uncertainty, and I don't think you accomplish what you hope to accomplish.

You talked about mandatory minimum sentences perhaps infringing the Charter of Rights by virtue of being a cruel and unusual punishment. You then commented on how perhaps the mandatory minimum sentence for murder would survive because it was justified in a free and democratic society. Of course, we all know that murder is amongst the most heinous crimes, and I'm wondering whether the abduction of a child against its own will—you know, a vulnerable person—wouldn't fall into that category. Wouldn't that be something that perhaps could survive the criteria of what is reasonable in a free and democratic society, given the vulnerability of the victim?

I think it could. There are a number of offences that offend the public conscience, and kidnapping of children would be one. A minimum sentence might well survive section 1.

Similarly, legislation with respect to, say, child pornography or other crimes that attract public disgust might well pass the rigours of the charter. It depends on the extent to which you apply the minimum. Is five years adequate; is it proper; is two more likely?

But I agree with you that kidnapping a child has a good chance of being saved by section 1. Not all minimum sentences will fall because of the concerns over “cruel and unusual”. There are crimes that I think society is prepared to accept as deserving of a minimum sentence.

During the second reading of this private member's bill, Mr. Harris, who is a former justice critic, had an interesting comment. I'd like to share it with you. It colours how, basically, an abduction doesn't exist in isolation.

He said: It is very rare to have kidnapping cases that are simply about kidnapping. Sadly, they are often in connection with other crimes, whether they be of sexual assault or, in the most horrific of cases, murder.

Of course, we had Mr. Wilks testify, and his experience as a 20-year RCMP officer was relating things that went along the lines of Stephen King movies.

Again, say that this colours the whole issue of kidnapping with regard to surviving the “cruel and unusual punishment” test, do you feel that, given the circumstances surrounding abductions, this further bolsters the notion that an attack on the charter would be sustained, in the sense that this would be reasonable in a free and democratic society?

One difficulty in dealing with people under the age of 16, and the minimum sentence for them.... I don't know how common it is for people of that age to be involved in kidnapping, but let us drop the age from 16 to 14 or to 13. Does that change the mosaic, if that's the right word? It's hard to imagine a 12-year-old being involved in a kidnapping, but it's possible; we have seen strange things happen. Then the question arises of should a 12-year-old involved in a kidnapping be required to serve a minimum sentence of five years? Is his degree of guilt comparable to that of someone approaching adulthood at age 16? I don't know the answer to that, but for me talking about “under 16” raises a question: how far under 16?

I appreciate the comments, but if I'm not mistaken, this would not apply to young offenders; it would apply to Criminal Code offences, and so it was more in the context of an adult being subject to the full force of the Criminal Code. That is where I was directing my comments, certainly, not to a 15-year-old abducting someone.

I was looking at the proposed amendment, where it speaks, as I read it, of those under 16 being imprisoned for a minimum term of five years. That section is a little awkwardly written for purposes of reading.